ABFFE Files Brief in Support of National Security Letters Challenge

August 10, 2005

On Monday, August 1, the American Booksellers Foundation for Free Expression (ABFFE) and other groups representing libraries, authors, publishers, and professors filed an amicus brief in support of an American Civil Liberties Union (ACLU) lawsuit challenging the FBI's authority to issue National Security Letters (NSLs) under 18 U.S.C. 2709 of the Electronic Communications Privacy Act of 1986. The groups contend that NSLs, as amended in Section 505 of the USA Patriot Act, threaten the privacy of bookstore and library patrons because the provision makes it easy for the FBI to obtain sensitive information about the customers of "electronic communications service providers," including bookstores and libraries that offer Internet services to the public.

"This case is part of our continuing effort to restore the safeguards for reader privacy that were eliminated by the Patriot Act," said ABFFE President Chris Finan. "The FBI can use National Security Letters to obtain a bookseller's Internet records without any judicial oversight at all."

The ACLU, the American Civil Liberties Union Foundation, and John Doe (an anonymous Internet access firm that received an NSL), first filed the challenge in April, 2004, contending that the amended law violated the First and Fourth Amendments, because it does not impose adequate safeguards on the FBI's authority to force disclosure of sensitive and constitutionally protected information. Their lawsuit also challenged the constitutionality of the statute's gag provision, which prohibits anyone who receives an NSL from disclosing even that the FBI has sought information.

In September 2004 a federal court struck down Section 505 on the grounds that it violates free speech rights under the First Amendment, as well as the right to be free from unreasonable searches under the Fourth Amendment. However, the government appealed the ruling to the U.S. Court of Appeals for the Second Circuit.

The brief filed by ABFFE, the American Association of University Professors, the American Library Association, the Association of American Publishers, the Freedom to Read Foundation, and PEN American Center, notes: "Section 2709 violates the First Amendment in at least two respects. First, Section 2709 authorizes the compelled disclosure of constitutionally protected information without any governmental showing that the information would actually further a terrorism investigation or any other substantial governmental interest.... As expanded by the Patriot Act, NSLs unconstitutionally threaten to chill the robust exchange of ideas over the Internet. Second, Section 2709's automatic gag rule violates the First Amendment because it unjustifiably imposes a blanket ban of secrecy upon recipients of orders without any showing of need for such secrecy."

Furthermore, the groups stressed that, while Section 2709 is aimed at telephone companies and ISPs, "Congress designed the statute broadly enough that it arguably would apply to many bookstores and nearly all public and university libraries and university networks." The organizations also contend that the definition of "electronic communications service provider" is arguably broad enough to cover any bookstore that operates a website or offers the public access to the Internet on its premises.

The Patriot Act re-authorization bills that have passed the House and Senate both provide additional safeguards for the privacy of bookstore and library records sought through NSL's, including a right to challenge the orders in regular federal courts and limits on the use of gag orders.

On August 3, a second amicus brief in support of the ACLU challenge to Section 505 was filed by the Electronic Frontier Foundation, the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart Ltd., the U.S. Internet Industry Association, and ZipLip, Inc. --David Grogan

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